The COMESA Court of Justice has defined the extent of immunities and privileges accorded to the COMESA Institutions. In a landmark Advisory Opinion delivered by the Appellate Division of the Court

on 5 February 2015 in Lusaka, it stated that the immunities and privileges granted to COMESA Institutions did not extend to commercial transactions between individuals or entities and the Institutions. “The immunities and privileges of the Institutions were restricted to transactions between Member States and COMESA”, said the Court.

Delivering the advisory Opinion, Justice Nzamba Kitonga (Court President) , Justice Ernest Sakala and Justice Dr. Borhan Amrallah stated that the immunities and privileges to be granted to COMESA and its Institutions were limited to acts which fell within the objectives of the COMESA Treaty and the respective constitutive Charters;

“These immunities and privileges could not be stretched to cover operations outside the objectives of the COMESA Treaty and the constitutive Charters of any of the COMESA Institutions”, the Judges stated.

The Application for the advisory opinion was filed by COMESA under Article 32(1) of the Treaty, as read together with Rule 107 of the Rules of the Court. It sought the opinion of the Court as to the applicability and extent of the immunities and privileges to be accorded to various institutions of COMESA that are engaged in commercial transactions.

During the hearing of the case Reference No. 1 of 2013 the Court received written submissions on behalf of the Applicant (COMESA) and on behalf of three Member States: Kenya, Uganda and Zimbabwe. The Court also heard from Counsel representing the Applicant and from the PTA Bank which is one of COMESA Institutions.

COMESA contended that the immunity and privileges of its Institutions were important for their proper functioning; and that any interpretation of the Treaty or Charter that watered down the effectiveness of immunities and privileges granted to these Institutions would be retrogressive and fatal to them.

The applicant urged the Court to hold that the immunity granted to COMESA Institutions was unfettered and absolute and that the concept of restrictive immunity did not extend to International Organizations.

Uganda submitted that immunity did not extend to commercial transactions between individuals and COMESA Institutions; that the immunity of the Institutions was restricted to transactions between Member States and COMESA Institutions; and that where any COMESA Institution opted to engage in any commercial transaction with a person, other than a Member State, then their constitutive Charters could not insulate them from liability.

Zimbabwe observed that there was a need to harmonize the various laws that governed privileges and immunities for COMESA and its Institutions.

Kenya observed that the rationale for restricting immunity of International Organizations, where these Organizations engaged in commercial transactions with third parties, was that a balance had to be created between immunity from suit and legal process and the right of third parties engaged in commercial transactions with International Organizations to access a Court. This right is guaranteed in various national constitutions and international instruments.

COMESA has various Institutions engaged in commercial transactions including the PTA Bank, PTA Reinsurance Company (ZEP-RE), African Trade Insurance Company (ATI) among others based in different Member States.